Restorative Group Conferencing and Sexting: Repairing Harm in Wright County
Editor’s note: This is a guest post written by Nancy Riestenberg, who works for the Minnesota Department of Education. In it, she discusses an innovative approach used to address the harm that results from sexting images that are distributed beyond the originally intended recipient.
School Climate Specialist, Minnesota Department of Education
Three years ago, in a middle school in Wright County, Minnesota, students discovered sexually explicit pictures of a student on the cell phone of her boyfriend. The students ran to the bathroom with the cell phone and sent the pictures on to eight other students. By the time the adults in the school discovered them, many student cell phones had received the pictures. The administration asked the school resource officer from the Sheriff’s Office to investigate. Potentially many students could be charged with sending or receiving sexually explicit pictures of a minor, a felony offense. What was the County Attorney going to do?
Sexting is the act of sending sexually explicit messages or photos electronically, primarily thought cell phones. If the photo is of a child under the age of 18, the photo could be considered child pornography. Possession and dissemination of child pornography is a felony and could carry a sentence of one year or more in jail and a minimum $3000 fine or both. Collateral consequences of a felony on a student’s record could include being barred from certain jobs, entering the military and being accepted to college or university.
As a result of this case, the Court Services Department, Sheriff’s Office, and the County Attorney Office collaborated with the school district to develop the process currently used to handle sexting cases in Wright County. The process uses community conferencing, diversion and charging based on facts of the cases. The Restorative Justice Agent works with the County Attorney, school resource officer and school administrator to determine the proper approach in each case.
Restorative group conferencing, like victim offender dialogues and circles are a face to face communication processed facilitated by a trained adult, which brings together the persons harmed, the person who did the harm and other affected parties to engage in dialogue about a specific offence or rule violation. The facilitator usually meets with or talks to participants prior to bringing everyone together, ‘so they will know what to expect’ in the conference. The Center for Restorative Justice & Peacemaking at the University of Minnesota describes process:
The focus of the encounter nearly always involves naming what happened, identifying its impact, and coming to some common understanding, often including reaching agreement as to how any resultant harm will be repaired. Use of these processes can take place at any point in the justice process, including pre-arrest, pre-court referral, pre-sentencing, or post-sentencing and even during incarceration. (Umbreit, et. al, 2006).
In this incident, the decision was made to divert the case to the Wright County Restorative Justice Agent, who set up a restorative group conference to address and repair the harm. In addition to the students, parents of each student participated in the conference as well as the county attorney, the investigating officer, the school administrators and teachers—almost 40 people total. Some parents were initially angry that their child was participating in the conference since they had not made the pictures, but just sent on what they had received. It was the story of the girl who made the pictures that helped clarify the harm. She thought the pictures were just between her and her boyfriend, but now, she was the one who would live with the consequence of the pictures being forever floating on the Internet.
The conference results in an agreement that is made thorough consensus and all participants sign it. In addition to a three day suspension that was imposed before the conference, the students agreed to apologies, to write a written report on the risks and dangers of sending or receiving child pornography and all agreed to immediately report to the school administration or the SRO any sexually explicit pictures they might receive in the future or believe are circulating. The parents agreed to more closely monitor their child’s cell phone and internet use. The school district and county probation agreed to develop a presentation for parents as well as one for all students in the district with age appropriate lessons on sexting, legal and school consequences, and cyber literacy. Everyone signed the agreement. The county attorney agreed to a stay of adjudication or dismissal of charges if the agreement terms were met.
This incident and terms of the conferencing agreement resulted in the development of a county-wide protocol for both prevention education and investigation of sexting incidents.
1. County-wide, age appropriate education. Presentations on sexting, the law and its consequences are presented at the middle and high school levels. Presenters include a county probation office, a school social worker, county social worker and the restorative justice agent. Some schools developed ad campaigns designed by the students to educate their peers and parents. Presentations have also been made to parent groups.
2. Policy regarding cell phones and investigations. School policy regarding cell phones bans them in class; if a phone is found to have sexually explicit pictures on it, the Sherriff’s deputy takes the phone, conducts an investigating, and sends the investigation to the Sherriff’s office. The pictures are captured as evidence. The Deputy deletes the pictures.
3. Diversion or charges. The sergeant in charge of the juvenile and sexual predator unit recommends diversion or charges to the County Attorney. Diverted cases go to the Restorative Justice Agent for conferencing. A student is considered for diversion if he/she has no prior offenses, is not on probation, and if there are no extenuating circumstances. If a student receives an image and deletes it, the sheriff’s deputy will speak with the student and the parents, giving information on how to make cell phones more secure from such images.
Since the first case, there have been over 200 students involved in sexting investigations. All but a few were handled through a diversion process and many of the diversions are conducted as a community conference. Brian Stoll, Wright County Probation Officer presented the following reasons why the process works:
- It gives all those involved a chance to provide input, including school officials;
- It allows the perpetrator/victim to accept responsibility, but also to acknowledge the harm they experienced; and
- It holds individuals accountable without damaging his/her future.
In the three years that the educational and restorative program has been implemented, the seriousness of the cases, the number of youth involved in a case and number of referrals has gone down. “In the early cases,” said Eric Leander, Sergeant in charge of the Juvenile and Sexual Predator Unit, “we saw a lot of graphic video and close ups of body parts. Now, there are no videos and much less explicit pictures of the body.”
“Many of the cases now are between boyfriend and girlfriend, rather than the 10 to 15 person cases we started with,” reported Karen Determan, the Restorative Justice Agent, “and the images have not gone much past the two of them.” “Now students tell teachers or the SRO’s or administrators that they have seen or heard about sexting, so we get to stop the images before they get too far,” said Jeff Scherber, a middle school principal. “Students report even if they just heard about an image or if it has not happened in school. And the parents have been great supporters of our work. It used to be that parents would say, ‘my kid, my phone.’ We don’t hear that any more. They support our policy.”
The goals of the process include educating both the juveniles and the parents, attempting to repair the harm done, help all participants to understand the collateral consequences of sexting, and to deter further incidents. Most importantly, the process helps to keep juveniles out of the criminal justice system.
Umbreit, M.S., Vos, B, and Coates, R.B. Restorative Justice Dialogue: Evidence-based Practice. Center for Restorative Justice and Peacemaking, University of Minnesota, 2006.
Wright County Court Services, www.co.wright.mn.us. Michael J. MacMillan, Director firstname.lastname@example.org; Brian Stoll, Probation Officer, Brian.Stoll@co.wright.mn.us.
Law Enforcement Involvement in Bullying Incidents: Different Rules and Roles
Last week I posted about a situation where a student was suspended for his involvement in a fight in which video evidence showed that he did not participate in a way that warranted the punishment. In fact, from all available evidence, he did exactly the right thing to do: he walked away. Another aspect of that case that generated public scorn was the reported unprofessional treatment that the student received from the police officer assigned to the school. The student was evidently told by the officer that he should “bulk up” as a way to avoid being pushed around in the future. This got me to thinking a bit about the role of law enforcement officers in the schools.
Recent data are hard to come by, but thousands of officers work in schools every day across the United States. They are mostly responsible for the safety and security of the students, staff, and visitors, but often are utilized in a variety of other roles – some of which they are inadequately prepared for. For example, school-based law enforcement officers are occasionally called upon to provide instruction in the classroom (especially using pre-packaged drug or violence prevention curricula) yet they rarely receive formal training on how to teach effectively. Moreover, officers are regularly brought in to investigate or even mediate peer conflict, yet many are not well-trained in dealing with bullying incidents (or even in working with kids generally). Over eighty percent of the school-based officers we surveyed back in 2010 said that they needed more training on how to deal with cyberbullying. So what can cops contribute to the well-being of students and staff at school?
Law Enforcement Presence in Schools: SRO vs. Ad Hoc Model
Schools that have a dedicated school resource officer (SRO) assigned to their building are at an advantage when it comes to dealing with student issues that may implicate law enforcement. These officers generally have more training and experience in dealing with students and schools and their unique issues than their counterparts assigned to traditional patrol functions. Since SROs are in the schools on a continual basis, they are usually more attuned to student interpersonal relationships and the concerns of educators. The best officers know the students personally, and interact with them in a relatable way. As a result, students come to respect the police and better understand that they do more than, say, show up at their house when there is a domestic disturbance or issue them a citation for driving 5 miles-per-hour over the speed limit.
Unfortunately, this model has been disappearing in many schools across the country as both school and municipal budgets have contracted. Historically, SROs were often funded through a combination of money from schools and cities or counties, but when one partner pulls the financial plug, the other rarely has the resources to make up the difference and the position is usually lost. As a result, police are often called to the school only in situations where a significant (and possibly criminal) incident has occurred. Sometimes it is the same officer that responds throughout the school year, but often the call will be directed to whoever is on duty and in the area at the time. Having a consistent contact is important from a procedural standpoint (making sure the officer is aware of the issues related to schools and students), but it also helps to have a familiar face – both from the perspective of the staff and students.
Different Roles and Responsibilities
When it comes to responding to bullying (or any incident, really), school administrators and law enforcement officers play different yet complementing roles. Usually law enforcement is only pulled into the discussion when an incident appears to rise to the level of a violation of criminal law. Assaults or serious substantiated threats of violence would be the most common examples where the police should be brought in. Law enforcement can also assist in investigating incidents. They often have more training in interviewing and evidence collection, and would be able to evaluate the evidence to determine if a crime has been committed. That said, schools should be careful when including law enforcement officers in an interview because it changes the dynamic considerably. Having an officer stand over the shoulder of the principal while he or she is asking the student about school behaviors is intimidating under any circumstance, but especially so if the officer is not one who is regularly seen in the school.
Technically speaking, when an administrator is investigating an incident, they are doing so as a representative of the school, for possible school discipline. If the police are involved (whether it is a SRO or other officer), the investigation may become one where the focus is on uncovering evidence of a crime for possible criminal punishment. When that happens, the procedural rules change. For instance, when a school official is interviewing a student or searching his or her property, they typically only need a reasonable belief that the student has engaged in, or possesses evidence of, a behavior that violates school policy. Very few constitutional protections are afforded to students in these cases because the school is acting in loco parentis (in place of parents) and not as a government official for the purpose of formal punishment. When the police are involved in investigating a crime, citizens (including minors) do have certain rights.
In Miranda v. Arizona (1966), the U.S. Supreme Court ruled that, prior to “custodial interrogations,” law enforcement officers must inform individuals who are suspected of committing a crime that they have specific rights. We’ve all heard this statement before on crime shows: “You have the right to remain silent, anything you say can be used against you in a court of law…You have the right to an attorney…If you can’t afford one, one will be provided…” etc. This standard also generally applies when officers are interviewing minors in the community, but the question was recently raised in the Kentucky Supreme Court about whether students should be informed of their rights when being questioned by an officer at school, or by a school administrator in the presence of an officer (see also J.D.B. v North Carolina).
The Kentucky Supreme Court re-affirmed the ability of school officials to interview students for the purpose of a possible school sanction without being required to inform them of their rights, but ruled that in circumstances where a police officer is involved and criminal charges are possible, Miranda warnings are required. This deviates from some previous interpretations which basically held that if a law enforcement officer was assisting in a school investigation, the officer was beholden to the rules that applied to school officials. No doubt this issue is headed to the U.S. Supreme Court for clarification.
I have also previously written quite a bit on the different issues associated with whether an educator or a law enforcement officer can search the contents of a student cell phone. New Jersey v. T.L.O. (1985) states that students are protected by the Fourth Amendment to the U.S. Constitution which protects citizens from unreasonable searches and seizures by government officials. In T.L.O., the Supreme Court also made it clear that the standard that law enforcement officers must reach to conduct a search (probable cause that a crime has been committed), is not required of educators. The standard applied to school officials is whether the search is “justified at its inception and reasonable in scope.” Of course there is a bit of subjectivity to this standard and what appears to be reasonable for one person may not be for another. In T.L.O., the Court ruled that for a search of student property to be justified, there must exist: “reasonable grounds for believing that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”
These are just some of the issues, and as you can probably tell, many of the important questions have not been fully settled. Overall, officers and educators need to use their judgment about situations that might benefit from, or necessitate, law enforcement involvement. As long as there is no immediate threat of harm, it is usually best for school administrators to interview students involved in misbehavior without a law enforcement officer present. Under these circumstances they have a lot more freedom and leeway to gather the necessary information. As soon as the administrator reaches the conclusion that a crime may have been committed, he or she should turn the investigation over to the police. It is recommended that administrators have open lines of communication with local law enforcement officers (and especially SROs) so that both can respond quickly and effectively when confronted with a problem.
Coordinated Community Response
A well-trained and experienced SRO will be an asset in any school, and most administrators would (or at least should) welcome them with open arms. I have seen many amazing SROs work their magic in schools – improving safety and crisis response efforts, yes, but also by enhancing police-community relations and improving the overall culture of the school and broader community. The evidence concerning the effectiveness of SROs varies considerably (see this and this and this, for examples), which isn’t surprising given the diversity of personalities employed in these positions, and the varying ways in which SROs are utilized in schools. As is frequently the case, the conclusion I reach is that more solid research is necessary.
As a criminologist who teaches future cops, I know that the majority of law enforcement officers would approach any assignment with integrity and professionalism. Some are cut out to work in schools, while others are not. The duds need to be pulled out because they are doing more harm than good. From the available evidence, the officer in the video referenced above isn’t a good fit for a school and should be reassigned. If administrators and SROs work together for the common purpose of helping students (along with parents, of course), then great things can happen. There are a lot of ways this can fail, but usually it doesn’t. The high profile anomalies will end up on the nightly news, on YouTube, or in a courtroom. But we shouldn’t base our opinions on these worst cases and instead focus on what can be done to improve the response efforts of all involved.
If you are interested in a more detailed discussion of the issues, check out chapter 10 of our book “Cyberbullying Prevention and Response: Expert Perspectives” which covers “School Law Enforcement and Cyberbullying.”
Image credit: Gazzette
Law Enforcement Views of Cyberbullying and Sexting
Earlier this summer, Sameer and I (along with our good friend Joe Schafer), published an article in the FBI Law Enforcement Bulletin that describes the perceptions and experiences of law enforcement when it comes to responding to cyberbullying and sexting. This article stemmed from my work a few years ago as a Futurist in Residence with the FBI’s Behavioral Science Unit. For the study, we surveyed 979 police officers (336 school resource officers [SROs] and 643 traditional law enforcement officers who were not assigned to schools). We wanted to know what they thought about these high-tech teen problems and to see if there were any differences in perceived roles when comparing SROs with traditional police officers.
Perceptions and Experiences
The vast majority of the SROs (94%) agreed or strongly agreed that cyberbullying is a serious problem warranting the response of law enforcement. Similarly, 93% agreed or strongly agreed that sexting is a serious concern for law enforcement. As far as experience, 78% of the SROs reported that they had investigated an average of 16 cyberbullying cases during the previous school year and 67% of the SROs reported that they had personally investigated a sexting incident in the previous year (average=5 incidents).
Like the SROs, the majority of the traditional police officers (82%) agreed or strongly agreed that cyberbullying as a serious problem warranting the response of law enforcement. Seventy-eight percent agreed or strongly agreed that sexting is a serious concern for law enforcement. Relatively few of the traditional officers had experience investigating cyberbullying and sexting cases. Ten percent reported investigating an average of 2 cyberbullying cases during the previous school year and 7% reported that they had personally investigated a sexting incident in the previous year (average=3 cases).
The Law Enforcement Role
As a part of this study, we asked officers to rate (on a scale of 0-10, with 10 equaling a “very important/significant role”) the extent to which law enforcement should play a role in ten different cyberbullying scenarios. The scenarios ranged from relatively minor (e.g., “A teacher confiscates a cell phone from a student in class and wants to determine if it contains any information that is in violation of school policy.”) to much more serious (e.g., “A male student receives an email from an unknown person threatening to kill him at school tomorrow.”). In all cases the SROs rated the law enforcement role significantly higher than the traditional law enforcement officers. Clearly, the officers who work in the schools, who most directly confront these problems, see themselves has having a greater responsibility in dealing with the cases than the officers who do not regularly work in schools.
Experience with cyberbullying and sexting cases was also big predictor of officer perceptions about their role. Specifically, officers who had experience with investigating a cyberbullying or sexting case were over 2.5 times as likely to view cyberbullying and sexting as a significant concern for law enforcement, compared to those who had no such experience. For both cyberbullying and sexting, female officers were significantly more likely to report that they strongly agreed that there was an important role in getting involved in the behaviors. Moreover, officers who had children under the age of 18 living at home were significantly more likely to agree that cyberbullying was something law enforcement needed to be involved in dealing with.
Appropriate Law Enforcement Response
Law enforcement officers, especially those who are assigned to a school, will undoubtedly need to become involved in cyberbullying and/or sexting incidents at some point during their careers. They will be most frequently called upon to act after incidents occur within the student body. While most instances of cyberbullying do not warrant the formal intervention and response of law enforcement, some cases do. Even if the cyberbullying behavior doesn’t immediately appear to rise to the level of a crime, officers should use their discretion to handle the situation in a way that is appropriate for the circumstances. For example, a simple discussion of the legal issues involved in cyberbullying may be enough to deter some first-time bullies from future misbehavior. Officers might also talk to parents about their child’s conduct and express to them the seriousness of online harassment. The law enforcement response typically varies based on how the case is discovered, how much harm has occurred, how evidence is collected, who all is involved, and how well-trained the officer may be. All officers, but especially those assigned to a school setting, should educate themselves about the online behaviors of adolescents. They should also seek to respond to misbehaviors in a reasonable and appropriate manner, with the goal of preventing subsequent problem behaviors without imposing unnecessarily harsh disciplines.
Decoding Your Digital Footprint
When individuals are online, they are assigned an Internet Protocol (IP) address by their Internet service provider (e.g., Earthlink, AOL, Qwest, Comcast, their school) or cell phone service provider (e.g., Sprint, AT&T, Verizon). This IP address is unique and is bound to a person’s current online session—whether it is via a computer, cell phone, or other portable electronic device. It is continually associated with the data transactions (sending [uploading] and receiving [downloading], interacting, communicating) that are made between one’s device and the rest of the World Wide Web and between one’s social networking site, email, instant message, and chat software and the existing population of Internet users. All data transactions are stamped with one’s IP address and the exact date and time (to the millisecond) that it occurred, and they are kept in log files on computers owned by Internet service providers, cell phone service providers, and content providers (Facebook, Google, Hotmail, Yahoo!, etc.).
When attempting to discover the aggressor behind the keyboard, it is vital to know the IP address bound to the malicious message or piece of content. Once that is discovered, the relevant provider can assist school police (or local, state, or federal law enforcement) in identifying the online session in question, which points to the Internet service provider or cell phone service provider through whom the online connection was made, then to the person connected to that specific account (by way of the billing information), and finally to the family member who was logged in at the time the cyberbullying took place.
From School Climate 2.0: Preventing Cyberbullying and Sexting One Classroom at a Time
Should Cities Have a Cyberbullying Ordinance?
I have received quite a few inquiries in the last several months from local elected officials who are interested in proposing a city or county ordinance to address cyberbullying. An ordinance is basically a law or legal decree passed by local municipalities (usually a city, township, or county) that has the authority of law within the geographical limits of that municipality. Most cities have ordinances that govern parking, prohibit loud noises from vehicles, specify building standards, or require the licensure of pets, for example. If one is found to be in violation of a municipal ordinance, the person is usually fined a relatively small amount of money.
Several cities in my home state of Wisconsin have recently passed ordinances (e.g., Viroqua; Franklin). In addition, a number of cities in Missouri enacted local ordinances prohibiting cyberbullying following the tragic suicide of Megan Meier in 2006. At that time, there appeared to be very few legal (criminal) options to hold someone accountable for cyberbullying or other forms of online harassment. The question to consider is whether a local cyberbullying ordinance is the right way to tackle this problem. Here are my thoughts on this issue.
First, forty-nine states now have bullying laws in place and the vast majority of those (45) include provisions for electronic forms of harassment. The wording in these laws differs significantly from state to state, but all require schools to have policies in place to prohibit bullying and most prescribe school-based sanctions for participating in bullying. So these laws and a long line of court caselaw states that cyberbullying that occurs on school property or that substantially disrupts the school environment is subject to school authority and discipline.
Second, many states (including Montana—the one state without a formal bullying law) already have statewide criminal statutes that address cyberbullying. For example, in Wisconsin, it is a Class B misdemeanor to send an email or other computerized communication: “With intent to frighten, intimidate, threaten, abuse or harass another person…” Moreover, one is subject to a fine of up to $1,000 if they “harass, annoy, or offend another person” using an electronic communication system. Very few law enforcement officers I have communicated with here in Wisconsin have charged a student with violating this statute; however it is slightly more common for the police here (and in other places around the U.S.) to charge a student with disorderly conduct for harassing online behaviors.
So we need to ask ourselves what cyberbullying behaviors or scenarios exist that would not be covered under the above avenues and therefore would require a local ordinance? I suppose if you are in a state that does not have suitable state bullying or harassment (online or otherwise) statutes, then pursuing a local remedy might be necessary. Some of the local officials I have spoken to have indicated that their district attorney was reluctant or unwilling to file formal charges for cyberbullying behaviors and a city ordinance would give local police the ability to go after cyberbullies through the city attorney’s office. I’m not convinced this is the best place to handle these cases, but it does provide an additional lever to pull for someone who continues to engage in problematic online behaviors.
There is one potential benefit to local ordinances that may be specific to Wisconsin (it may apply to other states, I just don’t know). In Wisconsin, any contact that a person 17 years of age or older has with a circuit court (our lower level criminal court) is listed online through the Consolidated Court Automation Programs (CCAP). Anyone can look others up online through this public record system by name and birth date to see what trouble they have gotten into. When applying for jobs it is easy for hiring managers to look in this database to see whether someone has had a brush with the law. For example, if a high school junior receives an under-age drinking ticket when she is 17 years old, that would be listed on this website. Forever. So if that same student is then issued a citation for misusing a computerized communication system (sends a harassing email to a peer), which is a violation of Wisconsin state law, that too would be listed on the website, seemingly forever. If you are a victim of cyberbullying then maybe you think this is a good thing: the bully gets the punishment he or she deserves. But I think it is unrealistic to assume that anyone, especially teens, will be deterred from cyberbullying others for fear of being arrested and put on this online court system.
That is where a benefit of a local ordinance might be useful. If a city has a municipal ordinance prohibiting online harassment and also has a municipal court, then potentially the infraction would be handled at the local level and therefore the citation would not end up on the online public record. The “bully” would be punished, but it wouldn’t necessarily impact them for the rest of their life like a state violation could.
Look, the bottom line for me in all of this is that I believe that the vast majority of cyberbullying incidents, at least those that occur among school-aged youth, can and should be handled at the local level: by parents working with schools to resolve the situation outside of the formal juvenile justice system. If the harassment is particularly egregious or continues after other attempts have been made to stop it, then perhaps additional formal steps are necessary. But I just don’t think a local ordinance, on balance, will do much to add to the toolkit of suitable response strategies for this problem.
One thing is clear: if states had practical cyberbullying legislation, then local communities would not need to be looking to develop their own legal responses. I spend a lot of time working with legislators to develop cyberbullying laws. As I have mentioned on this blog before, despite my best efforts, my state of Wisconsin has a pretty poor bullying law that doesn’t even mention cyberbullying. I advocate language that emphasizes the school’s recognized authority to discipline students for any behavior that interferes with another student’s ability to feel safe and to learn at school. Specifically, I encourage legislators to adopt the following language:
Schools have the authority and responsibility to apply reasonable and educationally-based discipline, consistent with a pupil’s constitutionally granted privileges, to bullying that: (a) Occurs on, or is delivered to, school property or a school-sponsored activity or event on or off school property; or (b) Occurs off of school property or outside of a school-sponsored activity or event, if the conduct interferes with a pupil’s educational opportunities, creates a hostile environment for that pupil or others, or substantially disrupts the orderly operations of the school or school-sponsored activity or event.
To be sure, this language focuses exclusively on the school’s role in responding to student bullying and cyberbullying. It is also vitally important that parents are involved in disciplining their children when they misuse technology, but that is more difficult to legislate.
Of course the above legislative language wouldn’t address adult behaviors. Those should be handled in civil court (intentional infliction of emotional distress, harassment, false light, etc.) or in rare cases criminal court (harassment, stalking, misuse of computerized communications devices). For more information about responding to adult online harassment, see my blog here.
What do you think? Does your city have a cyberbullying ordinance? If you are a police officer or local prosecutor, I would love your opinion on whether you think local regulations are the way to go.
Help With Fake Facebook Profile Pages
Imagine you receive an email from a friend that includes a link to a Facebook profile. You click on the link and see your name and picture on the profile. But you didn’t create it. And some of the information included isn’t exactly flattering. In fact, it’s embarrassing, and malicious, and ruining your reputation. Now what do you do? We regularly receive requests from people who find themselves, their kids, or their friends in this situation. The key in responding is to move quickly to gather information and to inform the proper authorities.
If you know who created the profile, ask them to remove it. Facebook has a social reporting tool that allows you to convey your disapproval, and ask that the content be removed, in a respectful way. (You can read Larry Magid’s recent interview with Facebook’s Arturo Bejar where they discuss these options.)
If you don’t feel comfortable with that, or do not know who created it, you can report it to Facebook and it will be disabled while they investigate. If you do not have a Facebook account, you can report imposter profiles here. If the creator of the fake profile attempts to log into the account after it has been reported, Facebook will require the user to prove their identity and display a map that shows where they are at (thereby removing the veil of complete anonymity). I think that is pretty cool! Facebook also educates the user about the consequences of identity theft. The company has developed numerous other tools to help you protect your information and reputation, including a form that allows you to request the records of an account that was impersonating you. Learn about and take advantage of all of these resources.
It is important that you collect as much information about the profile as you can before reporting it to Facebook. Take screenshots (see our fact sheet here) or simply print out the profile and any related information. Note the URL (web address) of the page because it includes the user ID (http://www.facebook.com/profile.php?id=1000000XXXXXXXX) or username (http://www.facebook.com/username). Try to identify all of the people who are connected to the profile (friends or followers). Collect as much information about them as you can. It might help in determining who was behind the creation of the profile.
Overall, the more information you can gather, the more easily it will be to identify who is responsible, and hold them accountable, if necessary. Once the account has been disabled by Facebook, it will be more difficult for you to get the evidence you need. And if the account creator deletes the account before you have a chance to report it to Facebook or collect the evidence, it can be impossible to obtain information about who created it. So move quickly to capture what you can.
If you believe that what was said or posted about you on the fake profile is of a criminal nature (e.g., a threat or a hate crime) or violates your civil rights (e.g., defamation of character or libel), contact local law enforcement so that they can investigate. This is particularly important if you feel that your safety (or the safety of someone else) is in jeopardy. The police are trained to determine whether information contained on the site could be viewed as a “true threat,” or if it violates the law in any other ways. The first thing the investigating officer should do is complete a formal request to Facebook to preserve the page details and accompanying account information before they are deleted by the user who created the page. Officers can do this even before a formal investigation has begun. The sooner this is done, the better. There are more guidelines for law enforcement officers here.
Law enforcement can also assist you in obtaining a subpoena, which is a legal order that requires a person or entity named to show up at court or to produce documents or other information specified (that could be used as evidence in a trial). While the specific procedures can vary by state, law enforcement officers can obtain a subpoena from a judge, county or state prosecutor, or other qualified attorney, once an investigation has begun. Facebook regularly assists law enforcement in responding to subpoenas by providing information about the creator of the account, including their name, email address, date of birth, and some other account identifiers provided by the user when they signed up. Lawyers can also obtain a subpoena for the purposes of obtaining evidence to be used in a civil case.
With a court order (which can only be issued by a judge), law enforcement officers can get additional information from Facebook, including transactional logs such as intra-session IP addresses. The IP address is the unique identifier that every online device is given. With the IP address, law enforcement will be able to determine the Internet Service Provider (ISP). Again using a court order, the officer will be able to obtain from the ISP the billing address and other subscriber information of the person involved.
If during the course of the investigation the officer determines that criminal charges are appropriate, they may obtain a warrant from a judge for the purpose of collecting even more information from Facebook, including the content of the pages (e.g., photos and comments). A warrant is another court order issued by a judge, but it must be accompanied by probable cause that the information requested is necessary for the purposes of investigating a crime. According to the Stored Communications Act: “A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication…only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure…” So without a warrant, Facebook has no obligation to provide the content of the pages. This is a good thing for those of us who use Facebook and other online environments appropriately and legally: Only when we are implicated in a crime should the content of our profiles be turned over to the government.
The differences described above between what information can be obtained through a request, a subpoena, a court order, or a warrant is determined somewhat by the company (Facebook in this case) but mostly by federal and state law. It largely depends on whether the information requested is the property of the company, the Internet Service Provider, or the customer. Technically, everything you post on Facebook is your property, though you give Facebook permission to use that information for certain purposes as a condition of using the site.
Some states include electronic communications in their impersonation or identity theft laws. For example, it is a class A misdemeanor in New York if someone “Impersonates another by communication by Internet website or electronic means with intent to obtain a benefit or injure or defraud another, or by such communication pretends to be a public servant in order to induce another to submit to such authority or act in reliance on such pretense.” Consult with law enforcement or a local attorney to learn more about the specific laws in your state.
In many cases, however, fake profiles are created for a laugh and the persons responsible perhaps do not fully understand the consequences of their behavior. This is especially true in incidents involving adolescents. So if there is no clear threat or other evidence of criminal behavior, resist contacting the police and try to work through the problem informally, involving parents, schools, and other adults as appropriate.
That said, there have been many incidents where students have created profiles about educators or their classmates that have ended up in court. Try to avoid this by proactively educating your children and students about these issues, and by creating a positive climate at school. In that way, hopefully they will not participate in these behaviors and if someone else does create a fake profile about them, they will know what to do and will feel comfortable turning to an adult for help.
Law Enforcement Perspectives on Cyberbullying
Much of our work to teach adults about what teens are doing online is directed toward educators or parents, but increasingly we are working with law enforcement officers – especially those assigned to a school setting (school resource or liaison officers). Like the others, police officers often find themselves in a difficult situation when confronted with a cyberbullying incident because of unfamiliarity with the technology or ambiguity in currently laws not designed to address such behaviors. Despite deficiencies in the law, most officers recognize that their role goes beyond simply enforcement. This is especially true for school-based officers who are mentors, educators, investigators, first responders, and so much more. Even when it comes to responding to cyberbullying or other teen technology misuse, law enforcement officers should be encouraged to use their discretion to “handle” the particular situation in an informal and creative way, when appropriate. Threats of arrest or detention don’t usually deter students from misbehaving, because they often feel invincible or able to elude the law. But the student who develops a strong bond to an officer will no doubt follow the law voluntarily in order to avoid disappointing their mentor. This is related to the broader issue of the importance of developing a caring and respectful climate at school—one in which the school law enforcement officer is a contributing part.
Over the last couple of years, we have formally surveyed approximately 1,000 law enforcement officers (including over 300 school resource officers) to better understand their unique perspectives concerning cyberbullying and other online behavioral problems. I will be presenting some of this research at the annual meeting of the Midwestern Criminal Justice Association later this week in Chicago. In general, over 85% of the officers surveyed said that cyberbullying was a serious concern that warrants the response of law enforcement. Almost 90% of the school resource officers had dealt with a cyberbullying case “sometimes” or “often.” Interestingly, though, about 25% of the school resource officers and over 40% of the traditional law enforcement officers didn’t know if their state had a law specific to cyberbullying. If you are one of those people, see our summary here.
So what we have learned in our preliminary research and discussions with law enforcement officers is that they realize they have a role to play, but they need more training. More and more states are passing laws on bullying and cyberbullying and while most of the legislation focuses on the responsibilities of educators, many school administrators are turning to their law enforcement partner for assistance. If you are a school-based officer, then you are in the right place to learn about these issues. If you are an educator or parent, you might want to pass our site on to them so they have a resource to turn to.
If we want to stop cyberbullying, all of the adults who interact with students need to recognize it as something worth stopping. That means we should talk with adolescents about online responsibility and integrity and intervene when we see or hear something inappropriate. Again, that doesn’t mean we should arrest and formally sanction those who engage in bullying. We have long argued that most cyberbullying cases should be handled informally. I believe that law enforcement officers should be in on these efforts as well. We need to remember that the primary goal is to get the bullying, no matter where it is happening, to stop. The more we accept that as our underlying mission, the easier it will become to see what needs to be done.
Another Well-Meaning, but Unfunded Mandate to Address Bullying
New Jersey’s updated bullying law took effect today amid controversy and confusion. The New York Times recently reported on the law and I have received numerous calls from folks interested in my take on certain provisions. Bullying and cyberbullying legislation has been the topic of much discussion on this blog, and regular readers know that we see a place for evidence-based, fiscally supported state legislation that helps clarify school responsibilities and provides them with the tools to better manage bullying and cyberbullying incidents. We haven’t seen the perfect law yet, and New Jersey’s iteration is not it either.
New Jersey’s law seems to focus much attention on accountability – not on holding the bully accountable, but making sure school officials take certain actions expeditiously. There are a series of requirements in the law that designate a very tight timeline for school actions:
• Principal must investigate incidents within one school day of witnessing or receiving a report of bullying
• Investigation must be completed within ten school days
• Results of the investigation must be sent to superintendent within two school days of completion
• Results must be reported to the board of education at the next scheduled meeting
• Parents need to be informed of investigation within five school days of board notification
• Parents may request a hearing of the board, which must be held within 10 days
The impetus for providing a detailed paper-trail and strict timeline for dealing with each incident likely comes from parents or student targets who feel as though their reports of harassment have been ignored, but holding schools to such a firm schedule will prove challenging. And depending on how each school interprets the definition of “bullying,” staff could quickly become mired in a bureaucracy and be forced to spend more time on paperwork than actually problem solving.
In fact, an interesting aspect of the language in this law is that it explicitly includes single incidents which traditionally would not have been considered bullying: “‘Harassment, intimidation or bullying’ means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents…” Clearly it is important to address all forms of harassment, even one-time incidents, no matter how minor, but to require schools to formally document every single case could easily overwhelm them with paperwork.
The law follows the pattern of other recent state legislation (see our analysis of New Hampshire’s law) in adding language that incorporates off-campus behaviors that substantially disrupt the learning environment at school. This seems to be one of the most controversial aspects of the law even though nothing has really changed with this. For decades the standard has been that any behavior, whether on campus or off, that substantially or materially disrupts the learning environment at school is subject to the school’s authority. This was originally articulated in Tinker v. Des Moines in 1969 and several subsequent Supreme Court cases have applied this precedent to numerous incidents where schools disciplined students for off-campus speech or behavior. States have simply tried to codify this so that the standard is more widely understood. This law does not require teachers to police the Internet, but it does insist that they respond when reports of cyberbullying that are disruptive to students at school are made. Since most schools are already doing that, the only significant change is the amount of documentation that is required within a very short period of time.
In general, much of the provisions in the law are actually positive, and again most schools are already doing many of the elements included. The major problem is that no money has been allocated to pull any of this together. For example, each school needs to designate an “anti-bullying specialist” and each district needs to name a “bullying coordinator” (contact information for these folks must be listed on the school’s web page). Since no resources have been provided to schools to hire actual specialists, these duties will no doubt fall on staff who may or may not have expertise in bullying prevention and response. Moreover, schools are now required to provide training to staff and volunteers, but information is lacking regarding evidence-based training programs or curricular enhancements. Therefore, many schools will be forced to create an ad-hoc program or pay for someone to provide programming that might not be effective or informed by research. These mandates are coming at time when schools in New Jersey and across the United States are laying off teachers and essential support staff left and right. If New Jersey and other states really wanted to send a strong message that bullying prevention and response is a priority, then they would provide resources for schools to implement these policies and practices effectively. Until then, the new law is only a bunch of words on paper. Complete details of the law are available here.
Cell Phone Search Checklist for School Administrators
Justin and I have been trying to figure out a way to help inform school administrators as to when they can go ahead and search the contents of student cell phones. Week after week after week, this is one of the primary questions we receive from them. We want to help guide them in a meaningful way without getting enmeshed in a large number of due process and consent issues. As such, I’d like to present this checklist as a flowchart of sorts to assist with the decision-making process whenever student cell phones are displayed and used in school environments where that display and use is prohibited. To note, this is a work-in-progress, and we would love to dialogue with you more about what is missing. As always, please consult your school district attorney before engaging in an action where you are unsure of the legal implications.
Cell Phone Search Checklist for School Administrators
Has the student consented to the search?
Yes or No (circle one)
If student will not consent, has the student’s parent consented?
Yes or No (circle one)
If no consent from student or parent, is it an emergency (an actual or imminent threat to public health or safety, which may result in loss of life, injury or property damage)?
Yes or No (circle one)
If no consent from student or parent, and no emergency is indicated, is it reasonable for you to believe a school policy violation has occurred and evidence that proves that violation is possibly on the device? Would you be able to articulate the reasoning before a court of law if necessary?
Yes or No (circle one)
Do you understand the scope of your cell phone search can go no further than the data locations (such as call logs, text records, photos) that specifically relate to the suspected policy violation?
Yes or No (circle one)
Have you spoken to other School District officials AND Legal Counsel to determine if it is to discuss the proposed search and surrounding
circumstances and ensure their appropriateness?
Yes or No (circle one)
Are you sure that this is not a law enforcement matter that then would require probable cause for a law enforcement officer to search the phone?
Yes or No (circle one)
Do you have an agreement with local law enforcement (including a stationed school resource officer at your school), that outlines a specific process, supported by state and federal search and seizure law, for conducting cell phone searches by police officers?
AT TIME OF INCIDENT:
Describe the circumstances under which the student’s cell phone was seized:
Describe the circumstances that you think give rise to a reasonable suspicion that the cell phone was used in violation of the law or a district policy:
What do you, our readers, think – based on your own experiences? Our ultimate goal with this is to more concretly ensure that the school administration has thought things through, and have received informed input from legal counsel and law enforcement as needed.
Additional Thoughts on Sexting Advice for Teens
Thanks to all for their comments on my recent blog about how teens should respond when they receive a “sext.” Here are some of my follow-up thoughts, based on comments and emails received, as well as an email exchange among members of the Youth Risk Online Google Group which includes some of the brightest “teens and tech minds” in the world. (You can read fellow member Larry Magid’s comments here.)
Being a criminologist who regularly works with police officers and who is currently working with the FBI to train officers about issues relating to cyberbullying, I certainly can appreciate the interest expressed by the law enforcement folks who responded saying that the evidence needs to be kept. The problem is that if they follow this advice, they risk prosecution for possession of child porn if a district attorney is trying to make a name for him/herself. Plus if a friend gets a hold of their phone, finds the image, and distributes it to others, there will be huge problems.
I also appreciate the concerns of those who maintain that an adult must be consulted. This is sage advice for many adolescent problems (including those that originate or escalate online), but frankly it just won’t work in a sexting incident. As I pointed out in my post, it is my contention that the vast majority of the time teens receive sexting images from those they consider close friends. As such, there is absolutely NO WAY they will tell an adult about this because they do not want to get that friend into so much trouble. If my best friend sends me a topless picture of his girlfriend, am I going to rat him out? Of course not. Adults, it seems, are forced to respond to sexting incidents in extreme ways – ways that have long-term, irreversible consequences. Until we can develop reasonable responses that do not potentially foreclose on the futures of all involved, we are wise to advise that students do not contact adults, unless the incident is appearing to get out of control. And I think teens know when it is out of control.
Moreover, whenever educators ask me what to do about sexting incidents they are made aware of, I generally advise them to contact a law enforcement partner. Unfortunately, this too is bad advice, but the only advice that is safe. Teachers who confide in other teachers risk prosecution for distribution of child porn. Educators simply aren’t trained to deal with these problems and if they try to do the right thing, it will likely come back to haunt them. The problem here is that cops and district attorneys do not have a good history when it comes to dealing with sexting. But they are not the only ones to blame for this. They are applying and enforcing outdated laws that weren’t written to deal with this problem. Police and prosecutors are generally black/white types of people, and there is a whole lot of gray when it comes to dealing with sexting. Until we sort these issues out, it is risky to involve them in responding to the problem. But it is also risky (perhaps even more so) for adults who are confronted with a sexting incident to not contact the police. That’s because they too are potentially subject to long-term, irreversible consequences if they mishandle the incident (that’s especially true for educators).
So, while I appreciate everyone’s feedback, nobody has said anything that leads me to change my advice. Keeping the best interest of teens in the forefront, we must insist that students who receive sext images immediately delete them and hope that the incident ends there. If it doesn’t, then we have to re-evaluate.